As evidence of its corporate structure and ownership, ATR has submitted the declaration of its Corporate Secretary, Francesco Paolo Giobbe. Giobbe states that ATR is an entity formed under French law, is not constituted under the laws of any other country, and is not incorporated in any state of the United States. Giobbe Decl. PP 2, 3. Giobbe further states that at least 65% of ATR's shares are owned by the governments of France and Italy. Id. P 3. Specifically, Giobbe attests that:

Fifty percent (50%) of the shares of ATR are owned by the French government national aerospace concern, Societe Nationale Industrielle Aerospatiale ("SNIA"). SNIA, in turn, is majority (91.42%) owned by the French government. Of the French government's 91.42% ownership interest, 62.16% is owned directly. Another 20% is owned by SOGEPA (a 100% owned holding entity of the French Government). Another 17.81% is owned through Credit Lyonnais. Credit Lyonnais is itself 52% owned by the French Government.

The other fifty percent (50%) of the shares of ATR are owned by Alenia. Alenia is a division of Finmeccanica S.p.A. Finmeccanica is the Italian government national aerospace concern, and is majority, minimum sixty-two (62%), owned by I.R.I.
*fn4"
(a 100% owned holding entity of the Italian government.

Id. PP 4, 5.

ATR has also submitted the declarations of Roberto Camiz, Alenia's Legal Counsel, and Philippe Simon, Deputy General Counsel for SNIA. Camiz states that Alenia is formed under Italian law, is not constituted under the laws of any other country, and is not incorporated in any state of the United States. Camiz Decl. P 2. Camiz' declaration repeats the ownership information concerning Alenia contained in Giobbe's declaration and adds that Finmeccanica is "an Italian government national industrial concern acting in the aerospace field through Alenia," is formed under Italian law, is not constituted under the laws of any other country and is not incorporated in any state of the United States. Id. P 3. Similarly, Simon's declaration states that SNIA, SOGEPA, and Credit Lyonnais are "separate juridical entities formed under French law." Simon Decl. PP 3, 4. Simon's declaration repeats the ownership information concerning SNIA contained in Giobbe's declaration and confirms that SNIA "is the French government national aerospace concern." Id. P 2.

The FSIA provides that, subject to certain exceptions enumerated in the Act, "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States." 28 U.S.C. § 1604. "The Foreign Sovereign Immunities Act 'provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country.'" Saudi Arabia v. Nelson, 507 U.S. 349, 113 S. Ct. 1471, 1476, 123 L. Ed. 2d 47 (1993) (quoting Argentine Republic v. Amerada Hess Shipping Corp. 488 U.S. 428, 433, 109 S. Ct. 683, 102 L. Ed. 2d 818 (1989)). One of the most significant exceptions to immunity, and the one, no doubt that will ultimately come into play in this action is the "commercial activity" exception:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.

28 U.S.C. § 1605(a)(2).

The threshold inquiry in applying the Act, of course, must be whether a "foreign state", as defined by the Act, is a party to the action. That is the issue in dispute in this case. ATR contends it is a "foreign state"; the plaintiffs contend it is not. The Act defines a "foreign state" as follows:

(a) A "foreign state", . . . includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).

(b) An "agency or instrumentality of a foreign state" means any entity--

(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and

(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.

28 U.S.C. § 1603. The House Judiciary Report's section-by-section analysis of the amended bill that was to become the FSIA provides:

Section 1603. Definitions

Section 1603 defines five terms that are used in the bill:

(a) Foreign state.-Subsection (a) defines the term foreign state as used in all provisions of chapter 97 [the "Jurisdictional Immunities of Foreign States" chapter of the United States Code], except section 1608. In section 1608, the term 'foreign state' refers only to the sovereign state itself.

As the definition indicates, the term "foreign state" as used in every other section of chapter 97 includes not only the foreign state but also political subdivisions, agencies and instrumentalities of the foreign state.

Before considering the principal matters at issue, we pause to dispose of a miscellany of other arguments raised by the plaintiffs.

Sufficiency of ATR's Factual Showing as to Ownership

As a threshold issue, several of the plaintiffs contend that ATR's factual showing regarding its ownership structure is insufficient to support a claim of foreign-state ownership. However, the Court finds that Giobbe's declaration (in conjunction with the supporting attachments) which explicitly states that "fifty percent (50%) of the shares of ATR are owned by" SNIA and "the other fifty percent (50%) of the shares of ATR are owned by Alenia" is sufficient. The abstract from the Registry of Commerce and Corporations of Toulouse France accompanying Giobbe's declaration evidences that ATR is comprised of two members, SNIA and Alenia (a division of Finmeccanica S.p.A.), and that these two entities appoint representatives to the management and administration of ATR. The "Statuts" (by-laws) of ATR, also submitted in conjunction with the Giobbe declaration, add further corroboration. Additionally, we find the declarations of Messrs. Simon and Camiz, in conjunction with the supporting materials, sufficiently evidence the ownership interests of the French and Italian governments in SNIA and Alenia, respectively. Thus, what remains to be decided is whether the structure of ownership interests in ATR can support ATR's claim to foreign state status. We discuss this issue at length below.
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The Purportedly "Collusive" Joinder of ATR to Create Federal Jurisdiction

The AMR defendants have brought legitimate claims for contribution and indemnity against ATR. And, the fact that ATR has answered the AMR complaints by, among other things, raising the affirmative defense that such claims are precluded by law and contract does not render the AMR complaints a sham. Plainly, the validity of ATR's affirmative defenses remains to be litigated.

No doubt the AMR defendants and ATR share a common interest in having this suit tried in a federal court rather than state court. But this fact alone does not collusion make for purposes of 28 U.S.C. § 1359; rather, to defeat federal jurisdiction, the collusion must involve some element of deceit or artifice. We need not concern ourselves with why these parties prefer to be in federal court so long as there is a legitimate basis for jurisdiction. See Chicago v. Mills, 204 U.S. 321, 330, 27 S. Ct. 286, 51 L. Ed. 504 (1907) (noting that so long as a suit "is free front fraud or collusion a party's motive in preferring a federal tribunal is immaterial"). Accordingly, because plaintiffs have failed to demonstrate any fraudulent manipulation of jurisdictional facts, the Court rejects their contention that federal jurisdiction has been improperly obtained through collusion.

We now turn to consider the more substantial issues presented by the instant motions.

"Pooling" of Ownership Interests

The plaintiffs maintain that the plain language of the FSIA indicates that "foreign state" status is conferred under the Act only where a majority interest in the entity is owned by a foreign state, not a number of foreign states. Because ATR's removal petition states that "ATR was, and is, a separate legal person, the majority of whose shares or other ownership interest were, and are, owned by the governments of the countries of France and Italy . . .", plaintiffs contend that ATR cannot claim foreign state status and has pleaded itself outside of the reach of the FSIA.

In support of its position, plaintiffs rely on Linton v. Airbus Industrie, 794 F. Supp. 650 (S.D. Tex. 1992). In Linton, the court held that where an entity is owned by several other entities (the "owning entities"), an owning entity may not pool its ownership interests with those of the other owning entities for purposes of calculating the total foreign state ownership of the owned entity, unless that owning entity is, itself, majority owned by a foreign state. Specifically, in Linton, the removing defendant (Airbus Industrie or "AI") was owned by four corporations. Two of the owning corporations, which collectively owned 42.1% of AI, were controlled unquestionably by foreign states; a third owning corporation, which owned 20% of AI was unquestionably privately owned. The fourth owning corporation (Deutsch Airbus GmbH or "DA") owned 37.9% of AI. The question addressed by the Linton court was articulated as follows: "Assuming that pooling is allowed, the critical question is whether [DA's] interest can be pooled with the 42.1% owned by foreign states. If so then FSIA applies; otherwise it does not." 794 F. Supp. at 652. The Linton court's answer to this question turned on whether DA could be considered a foreign state. If it was, the court assumed that its foreign state interests in AI could be pooled with the others; on the other hand, if DA was not a foreign state, the court would not allow the foreign state interests held through DA to be pooled with the others.

DA was owned by two companies. One, unquestionably an agency of the German government, owned 20% of DA; the other, which owned 80% of DA, was a German corporation, only 36.56% of which was owned by foreign states (the remaining 63.44% was privately owned). The removing defendants in Linton reasoned that the overall foreign-state ownership of AI totalled slightly over 60% [42.1% [(.2) (37.9%)=7.58%] [(.8) (.3656) (37.9%)=11.08] = 60.76%];
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hence, they argued, AI should be regarded as having a majority of its shares owned by a foreign state. The Linton court rejected this approach. Instead, the court reasoned that DA itself was not a foreign state because a majority of its shares was not owned by a foreign state; only 49.25% [20% [(.3656) (80%)=29.25%__ of DA's shares were owned by foreign states. 794 F. Supp. at 652. In reaching its holding that pooling would not be permitted under such circumstances, the court stated:

Even assuming that pooling is permitted, it is one thing to say that where an entity is owned by several other entities, FSIA applies to the first entity if more than 50% of its shares are owned by entities which are themselves foreign states. It is quite another thing to say that entities which are not foreign states or their instrumentalities may nevertheless pool their ownership interests in another entity such that FSIA applies to the latter.

Id. Thus, the court held that because DA was not majority owned by a foreign state, any foreign state ownership interests in AI derived through DA could not be pooled with other foreign state ownership interests. 794 F. Supp. at 653-54.

Plaintiffs read Linton as support for the broad proposition that pooling of (foreign state) ownership interests is impermissible for purposes of determining whether an entity claiming foreign state status is, in fact, majority owned by a foreign state. However, as should be clear from the foregoing account, this is not Linton's holding. Although on its face Linton is couched in terms of pooling, the case actually presents a tiering question--where the issue is "whether through 'tiering'[,] a foreign state's ownership interest can be attributed [to Airbus] when that foreign state did not own a majority interest in the company that held the ownership interest in Airbus." Linton v. Airbus Industrie, 30 F.3d 592 (5th Cir.), cert. denied, 513 U.S. 1044, 115 S. Ct. 639, 130 L. Ed. 2d 545 (1994).
*fn8"
With respect to the issue of whether pooling per se is permissible, the Linton opinion equivocates. First, the court stated that it was "far from clear that pooling is allowed under FSIA", noting:

Arguably, if Congress had wished to permit pooling, it could have easily defined a foreign state as an entity 50% or more of whose shares are owned by a foreign state or states. Because Congress did not so define foreign state, it is not for the courts to substitute this definition for the one provided

Obviously, FSIA applies to foreign states. Likewise under section 1603, an entity 50% or more of whose shares are owned by a foreign state is itself a foreign state. In the Court's view, although reasonable minds could disagree, it does not do too much violence to either the plain language or the spirit of FSIA to hold that foreign states may pool, their interests in an entity for purposes of determining whether that entity is a foreign state under FSIA. FSIA would unquestionably apply if any owner were a party or if more than 50% of the entity in question were owned by any single foreign state. It is not, therefore, too much of a stretch to assume that Congress intended FSIA to apply to an entity owned by several foreign states, even if no single foreign states [sic] owns a majority: a majority of the entity's stock or other ownership interest is still owned by foreign states to which Congress clearly intended FSIA to apply.

Id. at 652-53. Thus, although Linton sends mixed messages regarding the permissibility of pooling per se, it plainly does not hold pooling to be impermissible under FSIA. To the extent that Linton intimates that pooling of ownership interests is impermissible, we note that--although the Fifth Circuit declined to review the FSIA issue--in dicta, the court cast doubt on the district court's view:

We . . . observe that the district court questioned whether the interests of two or more foreign states could be combined, commenting that "pooling" appears to be foreclosed by the use of the state ("singular") in the FSIA. Linton, 794 F. Supp. at 652. This reasoning probably should be examined in light of the rules of statutory construction, e.g., 1 U.S.C. § 1 (providing that "words importing the singular include and apply to several persons, parties, or things" unless the context indicates otherwise), and in light of the cases in which the pooling issue has been considered.

Also, as the court observed in Linton, the majority of courts confronting the issue have, either explicitly or implicitly, recognized the propriety of pooling ownership interests for purposes of determining whether an entity may be considered an agency or instrumentality of a foreign state for purposes of the FSIA. See Linton, 794 F. Supp. at 651 (noting "every court that has considered the issue has approved this type of pooling"). Thus, for example, in LeDonne v. Gulf Air, Inc., 700 F. Supp. 1400 (E.D. Va. 1988), the court found that Gulf Air, Inc.--a joint stock company created by a treaty among the Emirate of Abu Dhabi, the State of Bahrain, the State of Qatar, and the Sultanate of Oman, who collectively owned 100% of Gulf Air's stock, id. at 1402--was an agency or instrumentality of a foreign state notwithstanding the fact that no single foreign state owned a majority of its shares. The LeDonne court noted:

In plaintiff's view, the FSIA does not apply unless majority ownership vests in a single foreign state. This is an unnecessary literalism that runs counter to the Act's purpose and ignores the well-established international practice of states acting jointly through treaty-created entities for public or sovereign purposes. If the policies that animate the FSIA are to be given their full range, it must, therefore, apply to treaty-created instrumentalities jointly owned by foreign states.

Id. at 1406. See also Mangattu v. M/V IBN Hayyan, 35 F.3d 205, 207-08 (5th Cir. 1994) (finding that foreign states could pool their ownership interests and that defendant, wholly owned by six foreign sovereigns, was therefore an instrumentality of a foreign state; "We hold that an entity 100% owned by foreign states, created by an agreement of all participating states, satisfies the requirements of § 1603(b)(2)"); Kern v. Jeppesen Sanderson, Inc., 867 F. Supp. 525, 530-31 (S.D. Tex. 1994) (finding entity to be a foreign state under the FSIA where a majority of its shares were owned by two foreign states at one relevant time and by three foreign states at another); Aluminum Distribs., Inc. v. Gulf Aluminum Rolling Mill Co., 1989 WL 64174 (N.D. Ill. 1989) (following LeDonne and finding "that the ownership of a majority of shares by several foreign states satisfies the requirements of § 1603(b)(2)"); In re EAL (Delaware) Corp., 1994 U.S. Dist. LEXIS 20528, 1994 WL 828320 *4 (D. Del. 1994) (same); see also Rios v. Marshall, 530 F. Supp. 351, 371 (S.D.N.Y. 1981) (assuming without discussion that an unincorporated association serving as the representative of 11 British West Indian governments was an instrumentality of those foreign states); but see Gardiner Stone Hunter Int'l v. Iberia Lineas Aereas de Espana, S.A., 896 F. Supp. 125, 131 (S.D.N.Y. 1995) (reasoning that pooling is only permitted where the entity in question was created by treaty or was a multinational joint venture).

Permitting ownership interests to be tiered for purposes of determining whether a defendant is entitled to foreign state status under § 1603 follows from § 1603's definition of a foreign state. A foreign state "includes . . . an agency or instrumentality of a foreign state." 28 U.S.C. § 1603(a). An "agency or instrumentality of a foreign state," in turn, is defined as

any entity-- (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.

28 U.S.C. § 1603(b). Thus, under § 1603(b)(2), if Corporation X is directly majority-owned by a foreign state it constitutes "an agency or instrumentality of a foreign state," and therefore, under § 1603(a), it is a "foreign state." If Corporation X, in turn, owns the majority of shares of Corporation Y, Corporation Y is, by definition, both owned by a foreign state [§ 1603(a)] and is a foreign state [§ 1603(b)(2)]. This Court's reading of § 1603(b)(2) in conjunction with § 1603(a) leads to the conclusion that so long as the corporate intermediaries standing between a foreign state and a defendant seeking to invoke foreign state status are themselves majority-owned by a statutorily-defined "foreign state" (which, to be explicit, includes an agency or instrumentality of a foreign state), such tiering of ownership interests will not deprive the defendant of foreign state status.

Gates, 54 F.3d at 1462. In this regard, the court observed that § 1603(b)(2) speaks of "an organ of a foreign state or political subdivision thereof" and the court further observed that the House Report's analysis of this section also distinguishes between foreign states and political subdivisions thereof:

The second criterion requires that the entity be either an organ of a foreign state (or of a foreign state's political subdivision), or that a majority of the entity's shares or other ownership interest be owned by a foreign state (or by a foreign state's political subdivision). If such entities are entirely owned by a foreign state, they would of course be included within the definition. Where ownership is divided between a foreign state and private interests, the entity will be deemed to be an agency or instrumentality of a foreign state only if a majority of the ownership interests (shares of stock or otherwise) is owned by a foreign state or by a foreign state's political subdivision.

Gates, 54 F.3d at 1462 (quoting H.R. REP. NO.1487, 94th Cong., 2d Sess. 15 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6614) (emphasis added). Insofar as the Gates court is highlighting the fact that the references to "a foreign state's political subdivision" in the statute and House Report are entirely superfluous given that § 1603 defines a foreign state to include its political subdivisions, this Court agrees. We respectfully do not agree, however, that this superfluous reference to political subdivisions compels the conclusion that the term foreign state as used in § 1603(b)(2) was intended by Congress to refer only to the sovereign states themselves and not their agencies or instrumentalities. Such a conclusion flies in the face of both the plain language of § 1603(a) as well as the House Report's analysis of § 1603(a), wherein the House Judiciary Committee observed:

Subsection (a) defines the term foreign state as used in all provisions of chapter 97 [the "Jurisdictional Immunities of Foreign States" chapter of the United States Code], except section 1608. In section 1608, the term 'foreign state' refers only to the sovereign state itself.

Id. We believe that this Court's proper role is to give effect to what we perceive to be Congress' plain language and intent, and to leave the legitimate concerns raised by the Gates court to the arena where they should be resolved--the legislative and executive branches of our government. Moreover, we note that the Gates court, like this Court, professes to be giving effect to "a literal reading of the statute," id.; however, that court's literal reading is achieved only by nullifying a key definitional provision of the Act and ignoring the House Judiciary Committee's analysis of that definitional provision. Therefore we respectfully decline to follow it.
*fn10"

In view of all of the foregoing considerations, we find that ATR is a foreign state as defined by the FSIA. Accordingly, we find that this Court has subject matter jurisdiction over these related cases under 28 U.S.C. § 1330 and § 1441 and removal of the state court actions to federal court was therefore proper. Plaintiffs' arguments that ATR was engaged in commercial activity and is therefore not entitled to immunity are misplaced in the instant remand motions. Whether ATR is entitled to immunity or is exempt from immunity under the commercial activity exception is a matter for another day. The threshold question, is simply whether ATR is entitled to foreign state status under the Act, permitting it to remove these actions from state court. The answer, again, is yes.

We turn next to consider the difficult question of whether, in those cases where ATR is only named as a third-party defendant, removal of the entire action (as opposed to only the third-party action) is appropriate.

Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury.

28 U.S.C. § 1441(d).

Courts construing this language have reached conflicting conclusions with respect to the proper scope of removal under the FSIA. Compare In re Surinam Airways Holding Co., 974 F.2d 1255 (11th Cir. 1992) (holding that the underlying claims against the nonforeign state defendant as well as the third-party claims against the foreign defendant may be removed), Nolan v. Boeing Co., 919 F.2d 1058 (5th Cir. 1990) (same), cert. denied, 499 U.S. 962, 111 S. Ct. 1587, 113 L. Ed. 2d 651 (1991), Lopez del Valle v. Gobierno de la Capital, 855 F. Supp. 34, 36-37 (D. Puerto Rico 1994) (same), Teledyne, Inc. v. Kone Corp., 892 F.2d 1404 (9th Cir. 1989) (holding that 28 U.S.C. § 1441(d) conferred jurisdiction over the entire civil action not just the claims against the foreign state in a suit in which a foreign state was named as a defendant along with nonforeign-state codefendants) and Arango v. Guzman, 621 F.2d 1371 (5th Cir. 1980) (same) with Schlumberger Indus., Inc. v. National Sur. Corp., 36 F.3d 1274 (1994) (holding that 28 U.S.C. § 1330(a) does not confer pendent party jurisdiction over nonforeign-state codefendants) and Alifieris v. American Airlines, Inc., 523 F. Supp. 1189 (E.D.N.Y. 1981) (holding that only the third-party complaint against the foreign state may be removed and remanding claims outside the third-party complaint to state court). As the Seventh Circuit recently observed, "the majority view is that the statute authorizing the removal of suits against a foreign state, 28 U.S.C. § 1441(d), authorizes the removal of the entire case, even if there are nonforeign defendants." Alonzi v. Budget Constr. Co., 55 F.3d 331, 333 (7th Cir. 1995). This has been held to be the case in actions involving foreign-state as well as nonforeign-state defendants, see e.g., Teledyne; Arango, supra, and in cases involving foreign states brought into the case solely as third-party defendants, see, e.g., Surinam Airways; Nolan, supra. The Seventh Circuit has yet to resolve the issue for this circuit. Alonzi, 55 F.3d at 333-34.
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By and large, the arguments for and against extending removal to the entire action and not just the claims against the foreign state have been amply set out in the foregoing opinions. We now turn to an examination of the reasoning in those opinions. Because the reasoning is essentially the same in all cases on either side of the split, we will confine our discussion to representative cases.

The Nolan court began its analysis by noting that there was no constitutional obstacle to exercising pendent party jurisdiction over the underlying actions because the parties to those actions possessed "minimal diversity," which is all that is constitutionally required. See State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 531, 87 S. Ct. 1199, 18 L. Ed. 2d 270 (1967) (finding that "Article III poses no obstacle to the legislative extension of federal jurisdiction, founded on diversity, so long as any two adverse parties are not co-citizens"). In the instant case, as in Nolan, the parties to the underlying state court actions possess minimal diversity.

Next, the court reasoned that the purpose and structure of the FSIA militate in favor of the conclusion that § 1441(d) should effect removal of the entire action to federal court. As courts and commentators have observed, a central purpose of the FSIA was "to establish uniform procedures for litigation against foreign States, their agencies and instrumentalities in the United States." Mark B. Feldman, The United States Foreign Sovereign Immunities Act of 1976 in Perspective: A Founder's View, INT'L & COMP. L.Q. 302, 305 (1986); see also 14 CHARLES A. WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3662 (1984) (observing that Congress intended § 1330's broad grant of jurisdiction to promote uniformity of decision in actions involving foreign governments); Rebecca J. Simmons, Note, Nationalized and Denationalized Commercial Enterprises Under the Foreign Sovereign Immunities Act, 90 COLUM. L. REV. 2278, 2294 (1990) (noting that a "critical . . . purpose of the FSIA was to impose order and uniformity" on United States law relating to immunities of foreign nations); Kimberly K. Hill, Note, Foreign Government-Owned Corporations, the Foreign Sovereign Immunities Act, and the Right to a Jury Trial, 1982 DUKE L.J. 1071, 1074 (1982) (noting that a principal objective of the FSIA is to ensure that the doctrine of restrictive immunity will be applied uniformly in United States courts); Williams v. Shipping Corp. of India, 653 F.2d 875, 879 (4th Cir. 1981) ("Both the statutory language and the legislative history [of the FSIA] evince the congressional decision to achieve uniformity of decisional law in the area of suits against foreign sovereigns."), cert. denied, 455 U.S. 982, 102 S. Ct. 1490, 71 L. Ed. 2d 691 (1982). This purpose could be thwarted, the Nolan court reasoned, if a foreign government could remove only the third-party action that named it as a defendant and not the underlying action:

the interest of a sovereign third-party defendant in removing the entire case may be more compelling [than that of a foreign sovereign named as a co-defendant (in which context courts have almost unanimously held that the entire action may be removed)], because its liability is logically dependant on the liability of a defendant in the main action. To protect itself fully, a third-party defendant like SNECMA could be called on to assert defenses on behalf of Boeing. . . . The outcome of the main suit very much affects SNECMA's rights.

Nolan, 919 F.2d at 1065 (citations omitted). See also Surinam Airways, 974 F.2d at 1259 (noting "if a foreign state lacks the ability to remove an entire case to federal court, then the goals of the Foreign Sovereign Immunities Act will be frustrated when that foreign sate is brought into an action as third-party defendant and is denied, for all practical purposes, to fully litigate its liability in federal court").

Finally, the Nolan court relied on the Act's legislative history to buttress its conclusion. In particular, the court quoted the House Judiciary Committee Report on the Act which states in pertinent part:

In view of the potential sensitivity of actions against foreign states and the importance of developing a uniform body of law in this area, it is important to give foreign states clear authority to remove to a Federal forum actions brought against them in the State courts. New subsection (d) of section 1441 permits the removal of any such action at the discretion of the foreign state, even if there are multiple defendants and some of these defendants desire not to remove the action or are citizens of the State in which the action has been brought.

H.R. REP. NO.1487, 94th Cong., 2d Sess. 32 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6631. The court also highlighted the Committee's observation that the FSIA prescribes "the jurisdiction of U.S. district courts in cases involving foreign states . . . ." H.R. REP. NO.1487, 94th Cong., 2d Sess. 12 (1976), reprinted in 1976 U.S.C.C.A.N. at 6610. With respect to the former passage, the court reasoned that the Committee's focus "on 'actions' rather than 'claims,' . . . reinforces the view that the FSIA grants federal jurisdiction over entire cases where a foreign state is a party." Nolan, 919 F.2d at 1065; accord Surinam Airways, 974 F.2d at 1259. And, this Court would add that the Committee's explicit remarks concerning removal "even if there are multiple defendants and some of these defendants desire not to remove the action" make quite plain the Congressional intent that all claims, not just those against the foreign state, would be removed. With respect to the second excerpt from the Committee Report, the court observed that the wording--the use of the phrase "cases involving foreign states" in particular--"is indistinguishable from language that the Supreme Court in Finley suggested was broad enough to create pendant party jurisdiction." Id. at 1065-66; accord Surinam Airways, 974 F.2d at 1259; see also Teledyne, 892 F.2d at 1409 ("This formulation is virtually indistinguishable from examples given by the Supreme Court of language broad enough to create pendent party jurisdiction.").
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In contrast to the holdings in Nolan, Teledyne, and Surinam Airways, the Fourth Circuit recently held that the FSIA's original jurisdiction provision, 28 U.S.C. § 1330(a), does not confer pendent party jurisdiction over nonforeign state codefendants in an action in which one of the named defendants is a foreign state. Schlumberger Indus., Inc. v. National Sur. Corp., 36 F.3d 1274 (1994). Because Schlumberger's holding was principally predicated on the FSIA's original jurisdiction provision, 28 U.S.C. § 1330(a), and not its removal provision, 28 U.S.C. § 1441(d), Schlumberger is not directly at odds with the former cases. However, the Fourth Circuit also addressed § 1441(d) and concluded that § 1441(d) also failed to confer jurisdiction over the nonforeign-state codefendants and the court's reasoning there plainly conflicts with that of Nolan, Teledyne, and Surinam Airways. So, we review Schlumberger here to see what light it sheds, if any, on the issue of the scope of removal jurisdiction under § 1441(d).

Schlumberger, 36 F.3d at 1278. The court then proceeded to consider "the vitality of pendent party jurisdiction under the FSIA in Finley's wake." Id. at 1279.

Because the suit had proceeded to completion below without objection to removal, the court confined its principal jurisdictional analysis to whether the district court would have had original jurisdiction of the case under § 1330(a). In this respect, the court was following what it considered to be the holding of Grubbs v. General Electric Credit Corp., 405 U.S. 699, 92 S. Ct. 1344, 31 L. Ed. 2d 612 (1972), wherein the Supreme Court stated, "where after removal a case is tried on the merits without objection and the federal court enters judgment, the issue in subsequent proceedings on appeal is not whether the case was properly removed, but whether the federal district court would have had original jurisdiction of the case had it been filed in that court." Grubbs, 405 U.S. at 702. Because original jurisdiction over the claims against ICI was premised on § 1330(a), the Schlumberger court examined whether that section allows for pendent party jurisdiction.

The court began its analysis by highlighting that § 1330(a) grants original jurisdiction to the district courts over "any nonjury civil action against a foreign state . . . as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity." 28 U.S.C. § 1330(a) (emphasis added). The court noted that this language, like the statutory language at issue in Finley, "extends subject matter jurisdiction only as to claims brought against a foreign sovereign and not to claims against other parties." Schlumberger, 36 F.3d at 1280. The court determined that "this phrasing is almost identical to the phrasing 'civil actions on claims against the United States,' which the Court in Finley found did not confer pendent party jurisdiction." Id. at 1281. The court claimed further support for its conclusion in the Judiciary Committee's section-by-section analysis of the FSIA wherein the Committee explained: "The jurisdiction [conferred by § 1330(a)] extends to any claim with respect to which the foreign state is not entitled to immunity." H.R. REP. NO.1487, 94th Cong., 2d Sess. 13 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6611 (emphasis added).

As should be evident from this review of Schlumberger's analysis of § 1441(d), the court did not find, much less hold, that § 1441(d) does not authorize pendent party jurisdiction. Indeed, the court was quick to emphasize the limited nature of its holding: "We emphasize that we do not here decide when, if ever, and, if so, to what extent, pendent party jurisdiction will accrue under section 1441(d). We hold only that where, as here, a purported foreign sovereign defendant who has filed for removal under that section is dismissed from the case before the federal court has had an opportunity otherwise to exert authority over the case, the district court retains no pendent party jurisdiction over the remaining domestic defendants." 36 F.3d at 1284-85.

Contrary to Nolan and its progeny, Schlumberger demonstrates that the language and legislative history of the FSIA can also be read so as to support the conclusion that federal court jurisdiction under the FSIA is limited to those claims brought against the foreign sovereign and that the FSIA does not confer pendent party jurisdiction. For a variety of reasons, this Court declines to follow Schlumberger in this regard and instead shall join with those courts that have concluded that jurisdiction under the FSIA's removal provision extends to the entire civil action, not just the claims against the foreign sovereign.

First, Schlumberger was expressly decided under the authority of Finley, which has now been legislatively overruled. See Schlumberger, 36 F.3d at 1279 ("We now consider the vitality of pendent party jurisdiction under the FSIA in Finley's wake."); see also id. n.9 (noting that newly enacted § 1367 "has no application" because the case was commenced prior to the effective date of the Judicial Improvement Act of 1990).
*fn17"
Thus, insofar as § 1367 now expressly provides for "pendent party jurisdiction," the analysis driven by Finley is unwarranted. Second, Schlumberger rested principally on an analysis of § 1330(a) [FSIA's original jurisdiction provision] not § 1441(d) [FSIA's removal provision], which is at issue here; and, the Schlumberger court comes close to conceding that jurisdiction under the removal provision may be broader than that conferred under the original jurisdiction provision:

With respect to the FSIA, several factors suggest that Congress intended removal jurisdiction to be broader than original jurisdiction and to confer some form of pendent party jurisdiction. First, the language of section 1441(d) is more accommodating to pendent party jurisdiction than is that of section 1330(a). Section 1441(d) does not include the limiting language "as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity," which is contained in section 130(a). Second, the legislative history underlying section 1441(d) seems clearly to confirm such an intent . . .

36 F.3d at 1282 n. 17. Although, as we have recounted above, the court ultimately reached the same conclusion even under a § 1441(d) analysis, that conclusion was highly dependent on the unique facts of the case (namely, that the foreign defendant was dismissed out of the case before any of the merits of the case were ever reached) and the court expressly limited its § 1441(d) holding to those facts. Those facts, of course, are not present here. Finally, and most fundamentally, we concur with the views expressed in Nolan and Surinam, see supra, that the goals of the FSIA could be thwarted by limiting federal district court jurisdiction to only those claims directed against a foreign-sovereign defendant (or foreign-sovereign third-party defendant). Accordingly, we conclude that in those cases in which ATR is named only as an impleaded third-party defendant, it may properly remove the entire civil action, including the underlying action against the non-ATR defendants to federal court.

Seventh Amendment Issues

Thus far, we have concluded that ATR meets the FSIA's statutory definition of a foreign sovereign and that, under the FSIA, it is entitled to remove the entire civil action filed in state court to federal court. Here, we run headlong into a potential confrontation with the Seventh Amendment. In particular, we must consider whether the FSIA violates the plaintiffs' Seventh Amendment right to a jury trial by legislatively defining foreign government owned corporations to be "foreign states" and therefore subject to trial only by the Court and not a jury. Then, in view of our determination that ATR may remove the entire civil action, we consider whether plaintiffs' are thereby impermissibly stripped of their Seventh Amendment right to a jury trial against the nonforeign sovereign defendants.

1. Right to Jury Trial in Suits Against Foreign-State Owned Corporations

The Seventh Amendment provides "In suits at common law, where the value shall exceed twenty dollars, the right of trial by jury shall be preserved . . . ." U.S. CONST. amend. VII. In Curtis v. Loether, 415 U.S. 189, 193, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974), the Court observed that while "the thrust of the Amendment was to preserve the right to jury trial as it existed in 1791, it has long been settled that the right extends beyond the common-law forms of action recognized at that time." Building on Curtis's theme, in Pernell v. Southall Realty, 416 U.S. 363, 375, 94 S. Ct. 1723, 40 L. Ed. 2d 198 (1974), the Court explained, "Whether or not a close equivalent to [the statutory cause of action at issue] existed in England in 1791 is irrelevant for Seventh Amendment purposes, for that Amendment requires trial by jury in actions unheard of at common law, provided that the action involves rights and remedies of the sort traditionally enforced in an action at law, rather than in an action in equity or admiralty." With these principles in mind, we turn to consider whether the nonjury provisions of the FSIA violate the Seventh Amendment.

In re Roselawn Air Crash, No. 95 C 4593 (Sept. 18, 1995 Minute Order).
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Additionally, pursuant to 28 U.S.C. § 2403(a) and Fed. R. Civ. P. 24(c), this Court certified the issue to the Attorney General and afforded the United States the opportunity to intervene if it so chose. On November 7, 1995, the United States notified the Court that it would not intervene or otherwise participate in this case with respect to the constitutional issue before the Court.

Before exploring the issue raised in this Court's minute order of September 18, we shall briefly review the existing decisions upholding the constitutionality of the FSIA vis-a-vis the Seventh Amendment. Actually, it is probably sufficient to review only Judge Friendly's seminal decision in Ruggiero v. Compania Peruana de Vapores "Inca Capac Yupanqui", 639 F.2d 872 (2d Cir. 1981), as the subsequent decisions simply parallel and follow that decision. Ruggiero involved three consolidated appeals. In each, the plaintiffs were longshoremen seeking damages under the Longshoremen's and Harbor Workers' Compensation Act for personal injuries allegedly resulting from various shipowners' negligence. The defendants were shipping companies incorporated under the laws of and wholly owned by foreign governments--Peru, Poland, and Indonesia. In each case the plaintiff had made a jury demand and the defendant moved to strike it pursuant to the FSIA. The district court granted the motion to strike and certified the issue for interlocutory appeal. The Second Circuit affirmed.

The world being composed of distinct sovereignties, possessing equal rights and independence, whose mutual benefit is promoted by intercourse with each other, . . . all sovereigns have consented to a relaxation in practice . . . of that absolute and complete jurisdiction within their respective territories which sovereignty confers.

. . .

. . . One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him.

11 U.S. at 136-37. He continued, "It seems then to the court to be a principle of public law that national ships of war, entering a port of a friendly power open for their reception, are to be considered as exempted by the consent of that power from its jurisdiction." Id. at 145-46. Fourteen years later, in Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562, 46 S. Ct. 611, 70 L. Ed. 1088 (1926), the Court extended the Schooner Exchange holding to vessels of a foreign state used for commercial purposes. See id. at 574. Based on these decisions, Judge Friendly concluded: "We have been pointed to nothing to show that a right of jury trial existed under the common law in 1791 with respect to a suit against a foreign government or an instrumentality thereof; such a suit could not be maintained at all." Ruggiero, 639 F.2d at 879.

Judge Friendly also analogized to situations in which the United States had waived its immunity to suit but had not provided for a jury trial and the Supreme Court found no Seventh Amendment violation in such jury-immunity because under the common law in 1791 there was no right to a jury trial in a suit against the sovereign. See McElrath v. United States, 102 U.S. 426, 26 L. Ed. 189 (1880) ("Suits against the government . . . are not controlled by the Seventh Amendment. They are not suits at common law within its true meaning."); Galloway v. United States, 319 U.S. 372, 388, 63 S. Ct. 1077, 87 L. Ed. 1458 (1943) ("It hardly can be maintained that under the common law in 1791 jury trial was a matter of right for persons asserting claims against the sovereign.") After citing these case, Judge Friendly observed, "A suit against a foreign state was just as much unknown to the common law of 1791 as was a suit against the United States." Ruggiero, 639 F.2d at 880.

Finally, Judge Friendly noted that just as it is rational for the United States to couple its waiver of sovereign immunity (when it chooses to do so) with a refusal to submit itself to a jury trial, it is equally rational for Congress to couple a withdrawal of sovereign immunity from foreign states with the same protection (viz., jury-immunity):

Surely one reason why the United States has coupled its waiver of sovereign immunity in certain types of cases with a refusal to submit itself to jury trial was the fear that juries might draw too heavily on a deep pocket. . . . By the same token Congress could legitimately consider that a partial withdrawal of sovereign immunity from foreign states would interfere with United States' international relations unless such states were accorded protection similar to what it had given itself.

The other court of appeals opinions upholding constitutionality of the FSIA in the face of Seventh Amendment challenges are essentially no different. Williams v. Shipping Corp. of India, 653 F.2d 875 (4th Cir. 1981), cert. denied, 455 U.S. 982, 102 S. Ct. 1490, 71 L. Ed. 2d 691 (1982), like Ruggiero, was a longshoreman's suit involving a defendant shipping corporation that was wholly owned by a foreign government. After removing the action from state court, the defendant moved to strike the plaintiff's jury demand and the motion was granted. The Fourth Circuit affirmed. The Williams opinion essentially parallels that of Ruggiero, beginning with citation to The Schooner Exchange and Berizzi Bros. for the purpose of setting up the proposition, "We think it is manifestly clear that in 1791 a suit against a foreign government could not be maintained in either the courts of America or England." 653 F.2d at 881-82. The court then noted its accord with the observations of Judge Friendly and concluded that "'suits against foreign sovereigns, authoritatively determined to have been unknown to the common law in 1791, are sui generis and should not be deemed to be within the scope of the Seventh Amendment's preservation of jury trial.'" Id. at 883 (quoting Ruggiero, 639 F.2d at 880-81). Again, as in Ruggiero, despite the fact that the defendant was a corporation wholly owned by a foreign sovereign--not a foreign sovereign itself--the court did not offer any assessment of whether this distinction affected the force of its analysis.

We need not add unnecessarily to this already lengthy opinion by reviewing Arango, Bank of China, and Goar individually just to establish that these opinions parallel and follow Ruggiero in all pertinent respects and like Ruggiero fail to distinguish between defendants that are themselves foreign sovereigns and defendants that are corporations owned in whole or part by a foreign sovereign. See Arango, 761 F.2d at 1534; Bank of China, 35 F.3d at 244-45; Goar, 688 F.2d at 424-27. We note that in Arango, one lone sentence proclaims that "the same immunity [as that afforded the sovereign itself] extended to commercial entities owned by foreign governments." 761 F.2d at 1534. However, as support for this proposition, Arango cites Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562, 46 S. Ct. 611, 70 L. Ed. 1088 (1926), in which the Supreme Court extended the holding of The Schooner Exchange (that military vessels owned by a foreign sovereign were immune from American court jurisdiction) to vessels owned and operated by a foreign sovereign for commercial purposes. Berizzi did not present facts involving jurisdiction over a corporation owned by a foreign sovereign.

We hold, therefore, that a suit against a foreign sovereign in district court pursuant to the FSIA is not a suit at common law within the meaning of the seventh amendment, and therefore the denial of jury trial in the Act does not violate the Constitution.

Id. at 69.

Although Rex frames the inquiry slightly different, its analysis, like that in Ruggiero, Williams, Arango and the others fails to distinguish between suits against the sovereign itself and suits against a corporation owned by the sovereign. As Judge Sloviter illustrates in his dissent in Rex, this distinction has been historically observed and can be traced back at least as far as Justice Marshall's opinion in Bank of the United States v. Planters' Bank of Georgia, 22 U.S. (9 Wheat) 904, 6 L. Ed. 244 (1924). Drawing on this historical tradition, which we shall discuss momentarily, Judge Sloviter observed:

It is important . . . that we recognize that there has been a distinction historically observed between the foreign sovereign itself and its ownership interests. . . . When foreign state-owned corporations began to be formed, they were not accorded presumptive immunity from suit. More often than not, such corporations were amenable to suit and in no case was ownership determinative.

. . .

. . . Thus the relevant case law demonstrates that corporations such as the defendant in this case were subject to suit prior to the FSIA. The majority's reliance on the immunity from suit of the foreign state itself is not to the contrary but is, rather, simply irrelevant.

Rex, 660 F.2d at 72-73 (Sloviter, J., dissenting) (emphasis added). Indeed, as Judge Sloviter correctly recounts, several federal district court opinions from the 1920s refused to confer immunity on foreign corporations owned or controlled by foreign governments. In Coale v. Societe Co-operative Suisse des Charbons, 21 F.2d 180, 181 (S.D.N.Y. 1921), Judge Augustus Hand stated, "if the Swiss government chose to do its business by means of the Societe, the latter, as a corporate entity, was liable for its corporate obligations. I find no case which holds otherwise." Similarly, in United States v. Deutsches Kalisyndikat Gesellschaft, 31 F.2d 199, 202 (S.D.N.Y. 1929), the court stated, "A suit against a corporation is not a suit against a government merely because it has been incorporated by direction of the government, and is used as a governmental agent, and its stock is owned solely by the government." See also Commercial Pacific Cable Co. v. Philippine Nat'l Bank, 263 F. 218 (S.D.N.Y.) (banking corporation majority owned by Philippine government not immune to suit), aff'd on other grounds, 269 F. 1022 (2d Cir. 1920).

. . . The suit is against a corporation, and the judgment is to be satisfied by the property of the corporation, not by that of the individual corporators. The State does not, by becoming a corporator, identify itself with the corporation. The Planters' Bank of Georgia is not the State of Georgia, although the State holds an interest in it.

. . . As a member of a corporation, a government never exercises its sovereignty. It acts merely as a corporator, and exercises no other power in the management of the affairs of the corporation, than expressly given by the incorporating act. . . .

. . . We think, then, that the Planters' Bank of Georgia is not exempt from being sued in the federal Courts, by the circumstance that the State is a corporator.

22 U.S. at 906-08. In what is, perhaps, the most direct passage, Justice Marshall stated:

It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted.

Id. at 907.

As one commentator has noted, "Planters' Bank firmly entrenched in American law the rule that a state-owned corporation does not enjoy sovereign status." Hoffman, supra note 11, at 544. The separate entity rule was followed in numerous cases by the Supreme Court as well as lower federal and state courts over the course of the next century. See Bank of the Commonwealth of Kentucky v. Wister, 27 U.S. (2 Pet.) 318, 7 L. Ed. 437 (1829) (finding that the question of the Bank's amenability to suit was "no longer open" after Planters' Bank even though in the instant suit, the State of Kentucky was the sole stockholder); United States v. Strang, 254 U.S. 491, 493-94, 41 S. Ct. 165, 65 L. Ed. 368 (1921) ("a state, when it becomes a stockholder in a bank, imparts none of its attributes of sovereignty to the institution; this is equally the case, whether it own a whole or a part of the stock of the bank"); Providence Eng'g Corp. v. Downey Shipbldg. Corp., 294 F. 641, 647-57 (2d Cir. 1923) (collecting cases), cert. denied, 264 U.S. 586, 44 S. Ct. 334, 68 L. Ed. 862 (1924); see generally Hoffman, supra note 11, at 543-51 (discussing the separate entity rule and collecting cases); John Thurston, Government Proprietary Corporations, 21 VA. L. REV. 351, 372-91 (1935) (collecting cases and noting, "The Planters' Bank and Commonwealth Bank cases have repeatedly been cited in later cases involving the same question, and it may be regarded as well settled that a corporation is not immune from suit by reason of the fact that the government holds part or all of its stock. For the purpose of suit, the corporation is regarded as a separate entity from the government."). Indeed, as recently as 1983, the Supreme Court cited Planters' Bank with approval, albeit in a different context, in an opinion examining whether the Banco Para el Comerico Exterior de Cuba (Bancec) should be considered a separate juridical entity from the Republic of Cuba, which supplied all of its capital and owned all of its stock. First Nat'l City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 103 S. Ct. 2591, 77 L. Ed. 2d 46 (1983). Although the Court ultimately held that the presumption of separate juridical status had been overcome under the particular facts presented in that case, the Supreme Court plainly embraced the principle that corporations owned by foreign governments are generally treated as separate legal entities from the governments that own them. See id. at 624-28. The Court explained:

Separate legal personality has been described as "an almost indispensable aspect of the public corporation." [Friedmann, Government Enterprise: A Comparative Analysis, in GOVERNMENT ENTERPRISE: A COMPARATIVE STUDY 303, 314 (W. Friedmann & J. Garner eds. 1970).] Provisions in the corporate charter stating that the instrumentality may sue and be sued have been construed to waive the sovereign immunity accorded to many governmental activities, thereby enabling third parties to deal with the instrumentality knowing that they may seek relief in the courts. n 16

. . . Due respect for the actions taken by foreign sovereigns and for principles of comity between nations . . . leads us to conclude--as the courts of Great Britain have concluded in other circumstances--that government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such.

First Nat'l City Bank, 462 U.S. at 624-27.

It is against this backdrop that this Court directed the parties to submit additional briefing, specifically directing them to address whether the rule announced in Planters' Bank is relevant and controlling. See also Committee on Int'l Litig., Commercial & Fed. Litig. Section, N.Y. State Bar Ass'n, A Foreign State Defendant's Right to Trial by Jury Under the Foreign Sovereign Immunities Act, 26 TEX. INT'L L.J., 71 (1991) ("The Planters' Bank decision does undercut Judge Friendly's Seventh Amendment analysis."). We note that the declarations submitted by ATR state that both I.R.I. and its wholly owned entity Finmeccanica (whose Alenia division owns 50% of ATR) as well as SNIA (the French government concern that owns the other 50% of ATR) are "separate juridical entities." See Giobbe Decl. PP 4,5; Camiz Decl. PP 3, 7; Simon Decl. P 3. Thus, we are led to the conclusion that, under the Planters' Bank rule, ATR has no claim to immunity deriving from France's and Italy's sovereign immunity. Under Planters' Bank and its progeny France and Italy are not conduits through which their immunity flows to ATR.

The foregoing, however, does not end our inquiry. The Seventh Amendment question with which we are concerned requires this Court to ascertain, so far as possible, the state of the common law in 1791. Planters' Bank was decided in 1824. Although there is ample authority indicating that, after 1824, a corporation owned by a foreign government and acting for commercial rather than governmental purposes was amenable to suit. This Court has been directed to no authority indicating that the rule stated in Planters' Bank had any origins in the common law as of 1791. Instead, it would appear that Planters' Bank marked a departure from the earlier general rule of absolute sovereign immunity. We note in this regard the statement of Lord Wilberforce in I Congreso del Partido, [1983] A.C. 244:

Id. at 261. Although this Court has located English cases, mostly from the twentieth and late-nineteenth centuries applying a "separate entity" type rule to cases involving corporations formed under various acts of the Crown, see, e.g., Roper v. Works & Public Bldgs. Commissioners, [1915] 84 L.J.R. 219, 1 KB 45 (permitting a breach of contract action to proceed against the commissioners); Graham & Sons v. Works & Public Bldgs. Commissioners, [1901] 70 L.J.R. 860, 2 KB 781 (same), we have located no cases applying such a rule in the international context. And, we have certainly located no decision suggesting that such a rule would have been operative at common law in 1791. This conclusion is corroborated by the Hoffman article cited above. See Hoffman, supra note 11, at 551-52.

Thus, although this Court, like Judge Sloviter, finds the Planters' Bank rule to be quite relevant, it does not take us beyond the significant threshold that would require us to conclude that the FSIA violates the Seventh Amendment by conferring jury-immunity on corporations owned by foreign sovereigns. Although the question presents a very close call, in the final analysis, we have no conclusive evidence that common law courts in 1791 would have treated a suit against a corporation owned by a foreign sovereign as anything but a suit against the foreign sovereign itself. Although the common law appears to have significantly changed in the nineteenth century so as to permit a cause of action to proceed against a foreign-state owned corporation under the "separate entity rule," we believe that that is not the pertinent inquiry. We are, of course, aware that in considering a claim of right to trial by jury under the Seventh Amendment we are not to regard common-law forms of action as frozen in 1791. However, we believe that the principle embodied in Curtis and Pernell that the Seventh Amendment encompasses forms of action not in existence in 1791 does not permit unlimited extension of the right to trial by jury under the facts presented by this case. It is significant that the Supreme Court qualified its statement that the Seventh "Amendment requires trial by jury in actions unheard of at common law" with the limitation, "provided that the action involves rights and remedies of the sort traditionally enforced in an action at law, rather than in an action in equity or admiralty," Pernell, 416 U.S. at 375 (citing Curtis, 415 U.S. at 195). Curtis and Pernell both involved statutory causes of action and the focus of the analysis was on whether the statutes at question created "legal rights and remedies enforceable in an action for damages in the ordinary courts of law." Curtis, 415 U.S. at 194. Here, there is no question that the rights sought to be enforced by the plaintiffs are legal in nature. Rather, the issue is whether plaintiffs' efforts in bringing suit against an instrumentality of a foreign government is an "action . . . traditionally enforced in an action at law" in 1791. The answer, we have come to conclude, is no. Therefore, following Ruggiero, Rex, Arango, Williams, Bank of China, and Goar, we must conclude that since a suit against a foreign sovereign was unknown at common law, the FSIA does not violate the Seventh Amendment by conferring jury-immunity upon corporations owned by foreign sovereigns. The Fifth Circuit summarized the pertinent analysis well in Goar as follows:

Our holding does not rest on the assumption that the seventh amendment is inapplicable to all causes of action that were unrecognized at common law in 1791. The historical test we apply is flexible and may require a jury in a new cause of action, not in existence in 1791, if it involves rights and remedies of the sort traditionally enforced in an action at law or if its nearest historical analogue is an action at common law. . . . But this flexible approach does not require a jury here. The cases that have required jury trials for new causes of action have involved legislative enhancement or creation of rights and duties in circumstances where the common law enforced similar rights and duties. . . . They did not involve removal or modification of blanket immunity, which creates enforceable rights and duties in circumstances where none existed before. . . . In 1791 there was simply no analogue, of the sort described, to a negligence action against a foreign sovereign.

688 F.2d at 427 (citations omitted).

In reaching this decision, we are mindful of the Supreme Court's characterization of judging the constitutionality of an Act of Congress as "the gravest and most delicate duty that [a] Court is called upon to perform." Blodgett v. Holden, 275 U.S. 142, 148, 48 S. Ct. 105, 72 L. Ed. 206 (1927) (Holmes, J.); Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 319, 105 S. Ct. 3180, 87 L. Ed. 2d 220 (1985); Rostker v. Goldberg, 453 U.S. 57, 64, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981). Moreover, this Court further notes its "due regard to the fact that [it] is not exercising a primary judgment but is sitting in judgment of those who also have taken the oath to observe the Constitution." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 164, 71 S. Ct. 624, 95 L. Ed. 817 (1951 (Frankfurter, J., concurring); see also Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 108 S. Ct. 1392, 99 L. Ed. 2d 645 (1988); Walters, 473 U.S. at 319. It is with regard to these observations that we conclude, based on all the available information we have reviewed, that the application of the FSIA to the facts of this case does not offend the Constitution.

2. Plaintiffs' Right to Jury Trial Against the Nonforeign Sovereign Defendants

In view of this Court's determination, in accord with Surinam Airways, Nolan, Teledyne, and Arango, see supra, that ATR is entitled to remove the entire civil action, including claims against codefendants and the underlying actions in cases in which ATR is named only as a third-party defendant, we must consider whether the plaintiffs are nevertheless entitled to a jury trial against the nonforeign sovereign defendants.
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It will be recalled that the FSIA's removal provision states:

Any civil action brought in a State court against a foreign state as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury.

28 U.S.C. § 1441(d).

Plaintiffs contend that they unquestionably have a right to jury trial with respect to their claims against the nonforeign state defendants and that any construction of this provision that would deny them this right would offend the Seventh Amendment. We agree. Furthermore, plaintiffs argue that a construction of the phrase "any civil action" as encompassing the entire case (including claims against codefendants and the underlying actions in cases in which ATR is named only as a third-party defendant)--as we have construed the phrase for purposes of determining the scope of removal--forecloses any construction of the removal provision that would permit a jury trial against the nonforeign sovereign defendants while holding a bench trial against ATR.
*fn20"
Here, we disagree. Although they do not do so explicitly, it is apparent that plaintiffs rely on the canon of statutory construction that "the same language used repeatedly in the same connection is presumed to bear the same meaning throughout the statute." See Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and The Rules or Canons About How Statutes are to be Construed, 3 VAND. L. REV. 395, 404 (1950).
*fn21"
Of course, as Professor Llewellyn observed, the invocation of that canon is readily met with the parry, "This presumption will be disregarded where it is necessary to assign different meanings to make the statute consistent." Id.; see also Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433, 52 S. Ct. 607, 76 L. Ed. 1204 (1932) (observing that words may be variously construed even "when used more than once in the same statute or even in the same section" and noting that the presumption of same word same meaning is not rigidly applied; "Where the subject matter to which the words refer is not the same in the several places in which they are used . . . or the scope of the legislative power exercised in one case is broader than that exercised in another, the meaning well may vary to meet the purposes of the law"); Calderon v. Witvoet, 999 F.2d 1101, 1104 (7th Cir. 1993). This rejoinder is even more powerful when assigning different meanings to the same language avoids a construction of the statute that renders its constitutionality questionable.

40 F.3d 1033; see also Outboard Motor, 461 F. Supp. at 396; Mori, 100 F.R.D. at 812 (citing Outboard Motor). Although Gould addressed § 1330(a) not § 1441(d), we have no reason to suspect that Congress envisioned parallel procedures in suits initially filed in the district court but not in suits removed from state court to federal district court. Accordingly, this Court shall employ parallel proceedings in which claims against ATR will be tried to the Court and all other claims tried to a jury. Additionally, pursuant to Rule 39(c), the Court hereby gives notice to the parties that it will employ the same jury for the additional purpose of rendering an advisory opinion with respect to the claims against ATR. As we have noted repeatedly, "this Court has an unassailable faith in the jury trial system," Noddings Investment Group v. Kelley, 881 F. Supp. 335, 337 n.2 (N.D. Ill. 1995), and we shall employ the advisory jury procedure in due regard for our strong belief in that system.

CONCLUSION

It should be obvious from the length of this opinion alone that the issues engendered by plaintiffs' motion to remand are complex and do not admit of any easy answers. This Court has endeavored to not give these issues the short shrift they have received at times. We emphasize that one reason the Court has given these issues the close attention it has--and has asked the parties to use their respective resources to help inform the Court as to these difficult issues--is that the issues are important and need to be properly addressed. A plaintiff's right to trial by jury is sacrosanct in our system of jurisprudence; and, any Act of Congress that limits that right must be subject to the most exacting scrutiny. The Seventh Amendment issues raised in this case presented a very close call and the Court was on the verge of declaring the FSIA unconstitutional under the specific facts presented. However, in the final analysis, the Court was of the opinion that there simply was not enough historical evidence that an action against a corporation owned by a foreign sovereign is an action "of the sort traditionally enforced in an action at law" to overcome the presumption of constitutionality that must be afforded an Act of Congress. See Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U.S. 437, 452-53, 75 S. Ct. 489, 99 L. Ed. 510 (1955) (Frankfurter, J.) ("We must . . . defer to the strong presumption . . . that Congress legislated in accordance with the Constitution.") This principal is especially true in matters of international affairs. In this regard, this Court is also quite mindful of its position as a federal district court and that Congress, as a coequal and representative branch of government, also swears to and is equally bound to uphold the Constitution. Finally, this Court is cognizant that it sits on the shores of Lake Michigan and not on the shores of the Potomac River.

Several of the other issues presented in this case are as vexatious as the Seventh Amendment issues and raise matters that have split the courts of appeal--with the Seventh Circuit yet to speak. Most notably, in Alonzi, 55 F.3d 331 (7th Cir. 1995), the Seventh Circuit flagged the issue of the proper scope of removal under § 1441(d) as one that has split the circuits, but the court was unable to resolve the issue for this circuit because it lacked jurisdiction over the case presented. The issue is plainly one about which reasonable minds may differ and it calls for resolution in this circuit. Similarly, with the recent decision of the Ninth Circuit in Gates, the courts of appeal are split as to whether the FSIA recognizes "tiering" of ownership interests such that an entity may claim foreign state status notwithstanding the fact that the foreign state's ownership interests are tiered through intermediary corporations. Plainly, as the instant suit reveals, recognizing such tiering has the effect of making the reach of the FSIA extremely expansive, with the result that entities only remotely related to the foreign state may be entitled to claim jury-immunity (if not complete immunity from suit). Although, we believe that we have given effect to the intent of Congress, we flag this issue as one requiring attention from the Court of Appeals, if not Congress.

Today, we find that (1) the FSIA recognizes pooling and tiering of ownership interests; (2) the FSIA's removal provision authorizes removal of the entire suit, not just the claims against the foreign sovereign; (3) the FSIA does not violate the Seventh Amendment by conferring jury-immunity on a corporation owned by a foreign state; and (4) plaintiffs are entitled to jury trials on claims against the nonforeign-state defendants. Accordingly, the Court denies plaintiffs' motion to remand.

In making this ruling, this Court expressly notes that it will seriously consider, if asked, certifying this ruling for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
*fn22"

Three requirements must be met in order for certification under § 1292(b) to be proper: "(1) the issue certified for appeal must involve a 'controlling question of law'; (2) there must be 'substantial ground for a [sic] difference of opinion' as to the application of this question of law; and (3) the claim must be one in which the immediate appeal of this controlling question of law 'may materially advance the ultimate termination of the litigation. . . .' 28 U.S.C. § 1292(b)." Horwitz v. Alloy Automotive Co., 957 F.2d 1431, 1435 (7th Cir. 1992).

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